The Case for Misconduct

We urge you to take some time to fully comprehend the nature of the misconduct. A condensed explanation follows. If after reading this you want to see detailed and fully referenced accounts of the misconduct, check the Wolchover articles on the links page.

The Government are driving Brexit without a licence

The Government are in a jam. They know it, and their actions show it.

For party political reasons they’re driving hard to deliver Brexit, but they’re trapped between a promise they made to deliver a result, a lack of legal legitimacy to do it, and fear that a Leave argument won’t survive public or Parliamentary scrutiny.

The misconduct comprises the mistruths and misdeeds these ministers have undertaken in trying to create the illusion of a mandate for ploughing ahead with Brexit. Just politics? No, this is criminal.

What you need to know about Article 50

There are two key paragraphs in Article 50. Being clear about how each one functions is the cornerstone to understanding the nature of the deceit and misconduct, which relies to a large extent on the blurring of the line between the two.

Article 50(1) permits any EU Member State to withdraw from the EU “in accordance with its own constitutional requirements.” Article 50(2) obliges a withdrawing state to notify the European Council about that decision. The 1st is about formalising the decision internally; the 2nd is about the obligation to notify externally, once decided. They are separate requirements, each needing to be squarely addressed.

With reference to Article 50(1), in the case brought by Gina Miller the Supreme Court held that the decision to withdraw could only be made by an Act of Parliament declaring the UK’s intention to withdraw, thus nullifying earlier statements by the Government to the contrary. Most notably it nullifies then Prime Minister David Cameron's statements to the Commons in January 2016 where he said that the British people would decide the country's future by voting in or out.

It further meant, as the Court stressed, that the Referendum result could not constitutionally stand as the withdrawal decision. The Bill that became the European Union (Notice of Withdrawal) Act 2017 was drafted in response to this point, but failed to satisfy it for reasons that are made clear below.

Mistruths and misdeeds

There were two linked stages in the commission of the offence. The first comprises a deliberately untrue statement made by Brexit Secretary David Davis on the floor of the Commons when introducing the European Union (Notice of Withdrawal) Bill on 31 January 2017, and repeated in substance by Baroness Evans in the Lords on 20 February, both with the authority of the Prime Minister. The deceit made it impossible for Parliament to take meaningful legislative steps to halt what comprises the second stage of the offence, the Prime Minister’s purported notification of Article 50(2), which she undertook in full knowledge that she had no legal authority or mandate to do so. The negotiations for withdrawal are hence being conducted on a foundation that Mrs May, Mr Davis and others know to be entirely false. To elaborate:

When Mr Davis, representing the government, introduced the Notice of Withdrawal Bill, he wilfully defied the Supreme Court ruling by telling the Commons that the withdrawal decision had already been made by the Referendum and that the Bill did not enact the leave decision. He was echoed by Baroness Evans in the Lords and by other ministers outside Parliament. This served to sidestep any need for Parliament to debate the Leave decision, by treating it as a decision already made by the Referendum.

The wording of the Notice of Withdrawal Bill, which became the Act, is entirely consistent with the government’s statement that the Act did not enact the decision.

It simply says that the Prime Minister may notify of the UK’s intention to withdraw under Article 50(2) i.e. an authority she already had.

It contains no language to enact a withdrawal decision as required by Article 50(1) per the Supreme Court ruling. Additionally, had a withdrawal decision been made, the Act would have obliged her to give notice, not merely authorised it.

While the Act authorises the Prime Minister to give notice under Article 50(2), it cannot be said to also make the Article 50(1) withdrawal decision by implication for several reasons, not the least of which is that Parliament was told explicitly that the Act would not make that decision.

In other words, smoke and mirrors.

By giving the Prime Minister an authority she already had, the Act did nothing in legal terms. It most certainly did not deliver the withdrawal decision required by the Supreme Court ruling.

In practical terms however, in muscling through an Act that was said to be in response to the Supreme Court ruling, the Government manufactured the appearance of a withdrawal decision and, by extension, the appearance of a mandate to notify under Article 50(2).

The Notice of Withdrawal Act itself is available for anyone to read. It simply does not deliver the withdrawal decision as required by the Supreme Court ruling.

Why the sleight of hand? It is more than reasonable to infer that the Cabinet did not want to ask Parliament to affirm the UK’s intention to withdraw because they did not want to subject the question to debate and the very real possibility of delays and a different outcome. So they asked Parliament to affirm something related but easier to ask and answer. The Government’s actions consistently describe an agenda for keeping Parliament out of it. To date, Parliament have not seen any of an estimated fifty Brexit Impact Assessment studies nor have they, after well over a year, been given an opportunity to debate the outcome of the Referendum.

Armed with the appearance of a mandate, the Prime Minister nonetheless purported to give notice under Article 50(2) on 29 March 2017, without having secured a withdrawal decision under Article 50(1), despite the Supreme Court ruling to do so. While her actions were beyond her legal authority, that fact was effectively camouflaged by the blurring of the line between the two relevant Article 50 requirements.

The Government know that neither the Referendum nor the Notice of Withdrawal Act made the withdrawal decision as required by the Supreme Court ruling.

How do we know they know?

Because it’s all a matter of record, meticulously researched in the articles linked below. Through a variety of submissions and statements it’s clear that Theresa May, David Davis and others in Government have been in no doubt about the advisory nature of the referendum, the meaning and implication of the Supreme Court ruling, and the fact that the Notice of Withdrawal Act did not make the withdrawal decision. And yet as recently as September 2017 in the Government’s response to the 2nd Referendum petition (which garnered more than 100,000 signatures) the same mistruths that underlie these charges of misconduct were echoed.

The Government are wilfully, knowingly and strategically misleading the public and Parliament for party political reasons on the most significant and high-stakes issue this country has faced for decades. Given its effect on the rights and lives and livelihood of millions of people, it is hard to imagine a more extreme case of Misconduct than this.